Canada: The JOBS Act And Its Implications For Canadian And Other Non-U.S. Issuers

The Jumpstart Our Business Startups Act, or the JOBS Act,
significantly reduces regulation and the attendant cost of raising
capital, conducting an IPO and related public company reporting
obligations. These changes create many new opportunities for
Canadian and other non-U.S. companies as well as U.S. companies.
Canadian and non-U.S. companies can better access the U.S. capital
markets either in an IPO or in stages and take advantage of the
higher valuations and increased liquidity that come with U.S.
capital market access for dually listed companies.

The JOBS Act enables non-U.S. issuers to access capital:

through immediately effective changes to the offering process
for SEC registered IPOs and reduced SEC reporting obligations for
companies with less than $1 billion in gross revenues;

The JOBS Act establishes a new category of issuers –
Emerging Growth Companies ("EGC"), which may take
advantage of an easier IPO process and lesser disclosure
requirements during and after registration with the SEC. An EGC is
a U.S. or non-U.S. company with annual gross revenues of less than
$1 billion during its most recently completed fiscal
year.1 Most companies that recently conducted IPOs in
the United States would have qualified as EGCs. Additionally,
non-U.S. companies could register under the U.S. Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
list their shares for trading in the United States and still
qualify as an EGC. However, EGC status is not available to
companies whose initial public offerings occurred on or before
December 8, 2011. Consequently, existing public companies are not
EGCs.

Non-U.S. companies can register under the Exchange Act, list
their shares, for trading in the United States and still qualify as
an EGC. A non-U.S. private issuer that qualifies as an EGC may take
the advantage of the benefits available to EGCs to the extent those
benefits apply to the form requirements for foreign private
issuers.2 Similarly, Canadian issuers filing under the
Multi-Jurisdictional Disclosure System (MJDS) can qualify as EGCs
if they meet the requirements of the definition.3

EGC status and the related benefits are not permanent. An
eligible company remains an EGC until the earliest of:

the last day of the fiscal year during which its annual gross
revenues exceeds $1 billion;

the last day of the fiscal year following the fifth anniversary
of its IPO of common equity in the United States;

the date on which the issuer has issued more than $1 billion in
non-convertible debt during the prior three-year period; or

the date on which it becomes a "large accelerated
filer" (i.e., when its public float is $700 million or
more).

An EGC that is a foreign private issuer could benefit from the
concessions given to EGCs during the five-year phase-in period and
when its EGC sales and related concessions expire, use the
concessions available to Canadian and other non-U.S. issuers.

The following benefits are available to EGCs:

Reduced Financial Disclosure Requirements in
IPOs. EGCs need only provide two years of audited
financial statements in their IPO registration statements, instead
of three years. Also, an EGC need not disclose in any periodic
report or registration statement financial data for any period
before the earliest audited period presented for the IPO.

No SOX 404(b) Auditor Attestation of Internal
Controls. Like other public companies, EGCs must
establish and maintain internal controls over financial reporting
and provide a management's report on those controls. The CEO
and CFO certifications of financial statements also remain.
However, EGCs are exempt from providing an auditor's
attestation report on internal control over financial reporting,
which is required for public companies with a market float of $75
million or more under Section 404(b) of the Sarbanes-Oxley Act.

Deferred Compliance with New Accounting Rules and
Exemption From Certain Auditing Requirements. EGCs
using U.S. GAAP need not comply with any new or revised accounting
standard until that standard applies to private companies, which is
usually 1-2 years after the standard is imposed on public
companies. EGCs need not comply with future PCAOB rules mandating
auditor rotation or any supplement to the auditor's report in
which the auditor must provide additional information about the
audit and the financial statements of the issuer, in the auditor
discussion and analysis section.

Reduced Executive Compensation
Disclosure. As long as companies are EGCs and for
three years after their IPO4, EGCs need not comply with
the full SEC requirements for executive compensation disclosure.
Specifically, EGCs need not (a) hold an advisory shareholder vote
to approve the compensation of executives, (b) obtain shareholder
approval for golden parachute compensation, and (c) disclose the
ratio of CEO-to-worker compensation. EGCs may otherwise comply only
with the compensation disclosure requirements for smaller reporting
companies, under which a company (a) must disclose the compensation
of three executive officers (rather than five) and a summary
compensation table that covers two years (rather than three), and
(b) need not include a compensation discussion and analysis
(CD&A). Also, EGCs need not disclose the relationship between
executive compensation actually paid and the financial performance
of the issuer.

Advantages in Marketing and IPO Procedures for
Research Reports. Broker-dealers may now publish
research reports about an EGC before or after its IPO, without
black-out periods, even if the broker-dealer is participating or
will participate in the IPO.

Test-the-Water Marketing. An EGC may
"test the waters" through oral or written communications
with potential investors that are "qualified institutional
buyers" ("QIBs") or institutions that are
"accredited investors"5 to determine whether
they may have an interest in the securities, either before or after
the filing of a registration statement. These new
"test-the-waters" provisions do not require the filing
with the SEC of the materials used to solicit investor interest,
which could result in the distribution of uneven information among
investors, among other risks.

Confidential Submission. An EGC may
confidentially submit to a draft registration statement for
confidential review by the Staff of the SEC before making a public
filing, provided that the initial confidential submission and all
amendments are publicly filed with the SEC no later than 21 days
before the start of road show. Recently, this advantage has become
more significant for foreign private issuers because the SEC
withdrew confidential treatment for foreign private issuers, except
for dually listed companies or those concurrently listing outside
the United States. If a foreign private issuer intends to rely on
EGC status to take advantage of other EGC benefits, then it will be
subject to the 21 day limitation before it must publicly submit its
materials.6

ECG confidential submissions are not available for the Exchange
Act filings such as Form 20-F or 40-F, which are also used for
listing on a U.S. stock exchange.

EGCs May Elect Full Compliance. An EGC
may elect to comply with the U.S. Securities Act of 1933, as
amended (the "Securities Act") and Exchange Act
requirements applicable to other public companies instead of taking
advantage of the exemptions from those requirements available to
EGCs.

If an EGC elects full compliance, the EGC:

must make its choice when it is first required to file a
registration statement or report with the SEC under Section 13 of
the Exchange Act and notify the SEC of that choice; and

may not pick and choose which standards to comply with, but
instead must comply with all the Securities Act and Exchange Act
standards to the same extent that a non-EGC must comply with those
standards for so long as the issuer remains an EGC.

Some EGCs may choose to comply voluntarily with selected
disclosure requirements applicable to larger issuers if the reduced
disclosures would adversely affect market reaction to the
company's offering.

II. Deregulating Offers: General Solicitation and Advertising
Will Be Permitted in Private Placements to Accredited Investors and
QIBs

The JOBS Act directs the SEC to adopt rules to permit general
solicitation and advertising in Rule 506 private placements,
provided that all purchasers in the offering are accredited
investors. Similarly, the SEC must permit general solicitation and
advertising in re-sales of securities under Rule 144A under the
Securities Act provided that all of the purchasers are reasonably
believed to be QIBs. Consequently, securities may be offered to
persons other than accredited investors and QIBs, by means of
general solicitation and advertising, provided that the securities
are sold only to persons that the seller and any person acting on
its behalf reasonably believe is an accredited investor or QIB, as
applicable. These changes could be used for early marketing of an
offering as well as announcing offerings and placement agents in
press releases. Issuers will have to establish compliance
procedures to verify that purchasers of the securities are
accredited investors or QIBs, as applicable.

The SEC will likely address in its rulemaking the prohibition on
"directed selling efforts" in the United States for
offerings outside the United States under Reg. S, which is very
similar to "general solicitation" and "general
advertising" and needed for offerings outside the United
States side-by-side with offerings in the United States.

Exemption from Registration as a Broker-Dealer.
For intermediaries offering and selling securities under Rule 506,
the JOBS Act provides a new exemption from registration as a
broker-dealer under Section 15(a)(1) of the Securities Act. This
exemption will permit internet platforms to offer and sell
securities broadly to the public. Specifically, the Act states that
a person will not be subject to registration as a broker-dealer
solely because that person:

maintains a platform or other mechanism for the offer, sale,
purchase, or negotiation of securities, or permits general
solicitation, general advertisements, or similar or related
activities by the issuers of the securities;

a person associated with that person co-invests in the
securities; or

a person associated with that person provides "ancillary
services" for the securities.7

This new exemption only applies if the person receives no
compensation in connection with the purchase or sale of the
security; the person does not have possession of customer funds or
securities in connection with the purchase or sale of the security;
and the person is not subject to a statutory disqualification under
Section 3(a)(39) of the Exchange Act (i.e., not a "bad
actor") and does not have any person associated with that
person subject to such a statutory disqualification.

III. An Alternative for Public Offerings of up to $50 Million
Every 12 Months

The JOBS Act creates a stripped down, less burdensome and less
expensive procedure for qualifying public offerings with the SEC
for companies to sell up to $50 million in securities within a 12
month period.8 The issuers can use this abbreviated
registration procedure to sell equity, debt and debt securities
convertible or exchangeable into equity, as well as any guarantees
of those securities. The securities may be sold publicly, will not
be restricted securities (i.e., can be publicly traded) and the
issuer may solicit interest before the filing (test the waters)
subject to such terms and conditions as the SEC may adopt. This
exemption is expected to apply both to U.S. and non-U.S.
issuers.

Although this procedure will be shorter and simpler than a full
registration process, the SEC may require companies that are
issuing securities through this process to file with the SEC and
distribute to prospective investors an offering statement,
including audited financial statements, a description of the
issuer's business operations, financial condition, corporate
governance principles, use of investor funds, and other appropriate
matters. Additionally, the issuer will be required to provide
audited financial statements with the SEC annually, and the SEC may
require additional periodic disclosures about the issuer, its
business operations, financial condition, corporate governance
principles, use of investor funds, and other appropriate matters.
Last, the SEC may disqualify "bad actors" from using this
exemption.

The exact requirements of this registration are not yet clear
and will be determined by the SEC. However, it appears to be a
similar process and type of registration as is currently available
under Regulation A, which is currently limited to $5 million and to
US domestic and Canadian issuers.

Attached is a table that compares a standard public offering and
Reg. A offering with the new exemption under Section 3(b)(2) of the
Securities Act.

IV. Increase in Record Holder Threshold for Exchange Act
Registration

The JOBS Act changed the threshold in Section 12(g) of the
Exchange Act that requires registration as a reporting company when
a company's shares become widely-held. Now, an issuer must
register under the Exchange Act if, on the last day of its fiscal
year, it has more than $10 million in total assets and a class of
equity securities with either 2,000 holders of record or 500
holders of record who are not accredited investors. The former
Exchange Act threshold was 500 shareholders of record. The new
higher threshold will also apply to private funds relying on
Section 3(c)(7) of the U.S. Investment Company Act.

Excluded from the calculation of total number are holders of
securities acquired through the crowdfunding exemption, as
discussed in the section below, and holders of securities received
under employee compensation plans of the issuer under exemptions
from Securities Act registration. These exclusions are in addition
to the pre-existing exclusion for beneficial owners who are not
also record holders, such as those persons who hold their
securities through brokerage firms or other intermediaries. Private
companies and their transfer agents may now have to monitor
ownership of equity securities by non-accredited investors, which
would add to the cost and complexity of maintaining stock
records.

The JOBS Act also sets the thresholds for banks and bank holding
companies with $10 million in assets and 2,000 record holders, with
no separate threshold for record holders who are not accredited
investors.

The new higher threshold could result in a substantial increase
in the trading of non-U.S. issuers in the U.S. security markets and
for private company securities in the secondary market because many
such companies will be free to acquire a much larger shareholder
base than was permitted. However, non-U.S. issuers must still
monitor their shareholder base to maintain their status as a
"foreign private issuer."

V. A New Exemption for Crowdfunding

The JOBS Act created a new exemption from registration under the
Securities Act to permit crowdfunding, or raising small amounts of
capital from large numbers of investors, for private companies,
typically through the internet. The new crowdfunding exemption in
Section 4(b) of the Securities Act permits a U.S. issuer that is
non-reporting under the Exchange Act to raise up to $1 million
within any 12 month period, including any amount sold in reliance
on the crowdfunding exemption. The crowdfunding exemption is not
directly available to non-U.S. issuers, U.S. public companies, or
investment companies. 9 However, because of the
publicity about crowdfunding, we describe the exemption below.

Limits on Purchasers. The company is
limited to a maximum investment from each investor, which includes
any amount sold in reliance on the crowdfunding exemption, plus any
amount sold during the 12 months preceding the date of the
transaction. This amount cannot exceed:

the greater of $2,000 or 5% of the annual income or net worth
of the investor, if either the annual income or the net worth of
the investor is less than $100,000; or

10% of the annual income or net worth of the investor, not to
exceed a maximum aggregate amount sold of $100,000, if either the
annual income or net worth of the investor is equal to or more than
$100,000.10

Company Information. The company must
file with the SEC and provide certain disclosures to investors and
the relevant broker or funding portal concerning, among other
items, the company business, business plan, pricing, ownership,
capital structure, valuation, risk factors, financial condition,
intended use of proceeds and target offering amount. The
disclosures must include, for offerings that, together with all
other crowdfunding offerings of the company within the preceding
12-month period, have, in the aggregate, target offering amounts of
:

$100,000 or less: (a) the income tax returns filed by the
company for the most recently completed year (if any); and (b)
financial statements of the company, which must be certified by the
principal executive officer of the company to be true and complete
in all material respects;

more than $100,000, but not more than $500,000: financial
statements reviewed by an independent public accountant; and

more than $500,000 (up to $1 million): audited financial
statements.

Any advertising of the offering must direct potential investors
to the intermediary.

The intermediary must also disclose all amounts paid to
compensate solicitors promoting the offering through the broker or
funding portal.

Issuers relying on the exemption must file with the SEC and
provide to investors, at least annually, reports of the results of
operations and financial statements as the SEC may determine.

Intermediary Must be Used. The
crowdfunding must be conducted through a broker or a funding portal
that is registered with the SEC and the applicable self-regulatory
organization. These broker-dealer or funding portal intermediaries
must provide certain disclosures, complete a due diligence inquiry
on the principals of the issuer, make certain company information
available to the SEC and take certain other
precautions.11

Funding Portals. All capital raises
conducted through crowdfunding have to be conducted through a
registered broker-dealer or funding portal. A "funding
portal" is a new category defined as a person that acts as an
intermediary in a transaction involving the offer or sale of
securities for the account of others, solely under the new
crowdfunding exemption. It is unclear whether a funding portal must
be an electronic system, rather than a manual brokerage operation.
However, a funding portal may not engage in the following basic
brokers' activities: (a) offering investment advice or
recommendations, (b) soliciting purchases or sales, (c)
compensating employees, agents or other persons for those
solicitations or based on the sale of securities, (d) holding,
managing or otherwise handling investor funds or securities, or (e)
engaging in such other activities as the SEC may determine.

Funding portals must register with the SEC as a funding portal
or as a broker-dealer. Those entities that chose to register as a
funding portal will be conditionally exempt from broker-dealer
registration. A registered funding portal must (i) be a member of
FINRA (which can be a lengthy process), (ii) remain subject to SEC
examination, enforcement and rulemaking authority, and (iii) meet
such other requirements that the SEC may determine.

State Securities Laws. Crowdfunded
securities will be "covered securities", which are exempt
from state securities law regulating offerings. However, as for all
covered securities, the states will retain enforcement authority.
State regulation of funding portals would also be preempted,
subject to limited enforcement and examination authority.

Additional Factors. Certain "bad
actors" will be disqualified from offering or selling
securities under this exemption. During the first year after their
issuance, securities issued under the crowdfunding exemption may
only be transferred to the company, accredited investors or certain
family members or sold in a public offering. Holders of securities
acquired in a crowdfunding transaction will not be considered
record holders that count for purposes of the threshold triggering
SEC registration under the Exchange Act.

Raising capital from a large number of shareholders in small
amounts raises potential challenges for a company, such as
increased record keeping responsibilities. It also remains to be
seen whether venture capital funds and other later stage investors
will avoid crowdfunded companies or, if not, how crowd funders will
react to later dilution or lower priority resulting from later
rounds of financing.

VI. Effectiveness of JOBS Act

The JOBS Act was enacted on April 5, 2012. Most provisions of
the JOBS Act became effective at the time of enactment, such as
those relating to EGCs and the higher shareholder threshold for
Exchange Act registration. Some reforms cannot become operative
until the SEC completes rulemaking, such as those relating to the
elimination of the ban on general solicitation and advertising
(July 5, 2012, i.e., 90 days after enactment), the crowdfunding
exemption (270 days after enactment), and the new Regulation A type
exemption. Other reforms, such as several of those that provide
EGCs with relief from disclosure and other regulatory burdens, can
be operational immediately but may require SEC guidance or
rulemaking to be fully effective.

Footnotes

1 The $1 billion limit is subject to adjustment by the SEC
every five years for inflation.

7 Ancillary service is defined in Section 201(c)(3) of the
rule as ''(A) the provision of due diligence services, in
connection with the offer, sale, purchase, or negotiation of such
security, so long as such services do not include, for separate
compensation, investment advice or recommendations to issuers or
investors"; and ''(B) the provision of standardized
documents to the issuers and investors, so long as such person or
entity does not negotiate the terms of the issuance for and on
behalf of third parties and issuers are not required to use the
standardized documents as a condition of using the
service.''

8 This amount is subject to adjustment every two
years.

9 Funds exempt from registration under the Investment
Company Act of 1940 by reason of Section 3(c), including hedge
funds and private equity funds, cannot take advantage of the
crowdfunding provisions. Further, non-U.S. dealers or funding
portals cannot participate in crowdfunding.

10 These amounts will be indexed for inflation every five
years.

11 Specifically, the broker-dealer or funding portal
must:

provide certain disclosures, including disclosures related
to risks and other investor-education materials,

ensure that each investor: reviews investor-education
information and affirms that the investor understands that he may
lose the entire investment and can bear that loss and understands
the level of risk for emerging businesses and the risk of
illiquidity;

conduct due diligence on the principals of the issuer,
including obtaining a background and securities enforcement
regulatory history check on each officer, director and person
holding more than 20% of the outstanding equity of every company
whose securities are offered by such person,

within 21 days before the first sale to an investor, make
available to the SEC and potential investors the company
information described below;

ensure that the offering proceeds are provided to the
issuer when the aggregate capital raised is equal to a greater than
the target offering amount;

allow investors to cancel their commitment under terms
determined by the SEC; and

make efforts to ensure that no investor in a 12-month
period has purchased securities offered pursuant to a crowd funded
offering that, in the aggregate, from all companies, exceed the
investor's limits.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.

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